This case has once been decided by this court and the opinion, written by Pound, G, is published on page 432, ante. ■
An extended motion for rehearing and an elaborate argument in support thereof was filed, and a rehearing allowed, and we have again carefully examined the record *442and considered the briefs and arguments on both sides, examining the evidence with special reference to the rule announced in Faulkner v. ¡Sima, filed March. 18,1903, holding in effect that the re-examination of an appealed equity case should be in fact a trial de novo, to see if under such rule we should hold the judgment and finding of the lower court to be right.
Without discussing the evidence here, but referring to the former decision for a sufficient statement thereof, we will say that upon the .evidence we are fully satisfied with the finding and judgment of the trial court; indeed, we are not prepared to say that we would have been satisfied with its decision had it been in favor of the defendant.
The burden of the argument made for the appellant is upon the propositions that the petition does not state a cause of action, and is also fatally defective because it does not show that the plaintiff had capacity to sue as the guardian of Emery W. Tuttle, and because it is claimed that lie did not so sue as guardian. A sufficient statement of the case to show the basis of these contentions will be found in the former opinion.
A demurrer was filed to the petition upon which the case was tried on the grounds that the plaintiff had no legal capacity to sue; and that the petition does not contain facts sufficient to constitute a cause of action. This was overruled and the defendant answered. In the answer no question is raised as to plaintiff’s capacity to sue, except by a denial of the allegation of his appointment as guardian,.and no question is raised anywhere in the pleading as to the action being prosecuted in the name of the real party in interest. Upon the trial no objection whatever was made to the taking of testimony on account of any defects in the petition.
Much contention of the appellant, in his argument and brief, is disposed of by the following stipulation, which is a part of the record: “The parties agree that Levi Bennett was duly appointed by the county court of Boyd county, Nebraska, as guardian of Emery W. Tuttle on the *44321st day of November, 1899, and that he gave the bond, required to be given as such guardian by order of the court, and duly qualified as such guardian and is still such guardian.” After entering into such a stipulation it is useless for the appellant to further contend that the plaintiff was not in fact such guardian, or to attack his appointment collaterally, simply because the petition in this action, which is not one for the appointment of a guardian, does not state grounds for such appointment. The stipulation admits that he was duly appointed by the proper court, duly qualified and Avas still such guardian. In the condition of the record, and after such a stipulation as this, the plaintiff would be entitled to amend his petition, if necessary, to make it conform to these stipulated facts. It is therefore not Avorth while to give time or space to any more full discussion of this contention than is found in the former opinion.
Another contention of the appellant is, that because to authorize the county court to appoint a guardian for Emery W. Tuttle it must have been made to appear in that court that he was mentally incompetent to have the charge of, and management of, his property; and because this action is brought by the guardian so appointed, therefore the plaintiff must allege and prove that Emery W. Tuttle at the time of making the conveyance in question Avas so mentally incompetent to ha\w the charge and management of his property as to render the deed in question absolutely void, because of the total Avant of capacity to make the deed at the time it Avas made. In this Ave think he is Avrong; the question of such capacity at the time of the hearing Avas in issue in the guardianship case, and was so decided by the court that the plaintiff Avas duly appointed guardian, and is res judicata. The plaintiff then had a right to bring this action to set aside the conveyance in question AAdthout allegation or proof that, at the time it was made, his Avard was totally Avithout capacity to make it, if upon any equitable grounds the Avard himself, or anyone claiming under him, could have sustained such an *444action; and what lie ivas required to allege and prove is such a set of facts as would require a court of equity to so set the conveyance aside. There was no need to allege and prove total incapacity in Emery W. Tuttle at the time the deed was made, although such allegations and proof would establish the fact that the deed of conveyance was absolutely void; therefore the contention that the judgment can not be sustained for want of such allegations and proof is unsound.
Argument is made that there is no pleading of facts which show that the deed in question was obtained by the defendant by means of any fraud, the contention being that the false representations alleged to have been made by the defendant to induce the deed aré not made respecting any existing fact or facts, and that the allegation that the defendant “falsely and fraudulently represented to said Emery W. Tuttle that his son, the said Bud Tuttle, and one Henry Duval * * * were conspiring together to defraud him of his aforesaid land; that said Duval and said Bud Tuttle were intending to bring an action against Emery W. Tuttle for a large sum of money” is “hypothetical, conditional and contingent, and is a mere opinion.” This is incorrect. The allegation is that defendant falsely and fraudulently represented the existence of an active conspiracy to defraud plaintiff’s ward of his land; and if the allegation be true, and this representation was falsely and fraudulently made by the defendant, well knowing the weak and enfeebled condition of Tuttle’s mind, and the deed was induced thereby, coupled with a promise that the defendant would hold the land in trust for the grantor, these facts would be sufficient to require a court of equity to enforce a trust, or compel a reconveyance.
Defendant’s brief, on page 25, contains The following: “Stripped of its incumbering verbiage, the pleader means to say that the defendant, knowing the age of Emery W. Tuttle and his enfeebled mental and bodily condition, falsely represented to him that his son and son-in-law were conspiring to defraud him of his land; that they, in*445tended to bring an action against Mm for a large sum of money and would be able to procure a judgment against Mm by false evidence, and would cause the land to be sold to satisfy the judgment, and that the only way to protect himself was to convey the land to the defendant, who promised to hold it in trust for him and reconvey it whenever he desired it. That these are conclusions of law and not statements of ultimate and issuable facts, I think no man familiar with the primary rules of pleading will attempt to deny. But whether true or not, it is true that they do not contain a single allegation of false representations respecting an existing fact.” The defendant’s mere statement of the proposition, stripped, as he says, of its incumbering verbiage, is sufficient to overthrow his contention. He argues that it “expresses no more than that the defendant represented to Mr. Tuttle his belief that the son and the son-in-law would bring an action,” etc.
Suppose the defendant did thus believe and so stated his belief, and suppose it were well founded, and suppose that Mr. Tuttle, weak and enfeebled in mind as stated, was so induced to malee the deed, relying upon the promise of the defendant to hold in trust for' him, and reconvey when he desired, and that such promise was made without intention of keeping the same, as the subsequent action of the defendant clearly indicates, the property being an exempt homestead and not capable of fraudulent alienation, would not a court of equity enforce the trust? But, as pleaded, it was not the expression of a belief, but a false and fraudulent statement of the present existence of a conspiracy, coupled with a declaration of the power of the conspirators to make their scheme successful. We are satisfied with the former holding of this court on the question of the sufficiency of the petition as the record stands, and the same is adhered to.
We are also satisfied with our former holding,' and the argument of the learned commissioner in the previous opinion, on the sufficiency of the allegation that the conveyance was without consideration as a pleading of fact. *446Pleading that the transfer of negotiable paper was “for a valuable, consideration, in the due and ordinary course of business,” etc., is common in our practice, and, when denied, raises an.issue; yet such allegation of the existence of a consideration is more nearly the statement of a conclusion of law than the allegation of its non-existence. If it- exists, its nature and manner of payment can be shown; if it does not exist, it has no nature or manner of payment.
There is still some contention that this action can not be sustained by the plaintiff, because he is designated in the title to the petition as “Levi Bennett, Guardian of Emery W. Tuttle”; arguing' that the words “Guardian of Emery W. Tuttle” are descrip lio persones.
In Thomas v. Carson 46 Nebr., 765, it is said: “Where the petition or complaint states a cause of action in favor of the plaintiff personally, superadded words, such as ‘agent,’ ‘executor’ or ‘trustee,’ will be regarded as déscriptio persona}.” But that is not this case, and we adhere to the rule announced in the former decision as right and decisive on this point.
We have carefully re-examined the case and we think sufficiently discussed the real issues of law and fact involved therein. It would be too tedious in this opinion to attempt to follow and analyze the entire one hundred pages of argument in appellant’s briefs. The points in the case necessary to a decision have been noted with special reference- to those insisted upon in the reargument, and we think they all have been correctly decided.
We recommend that the decision heretofore announced be adhered to.
Barnes and Albert, GO., concur.By the Court: For the reasons stated in the foregoing opinion, it is ordered that the former judgment of this court be adhered to and that the judgment of the district court be affirmed.
Former judgment adhered to.